Withdrawal from property sale: buyer's negligence does not absolve the notary

Imagine the scene: you are the owner in Soustons, in the Landes. You have signed a preliminary sale contract for your family home. The buyer, a couple, seems enthusiastic. Then, no further news. The days pass, the deadline for completion approaches, and suddenly, one of the buyers withdraws, arguing that they were never notified of the preliminary contract. Result: sale cancelled, penalty clause lost. But who is responsible? The notary who sent the registered letter, or the buyer who did not collect it?

This is precisely the question that the Court of Cassation decided in its judgment of 14 February 2018 (No. 17-10.514). A case that makes notaries tremble and reassures sellers: the right of withdrawal under Article L. 271-1 of the Code de la construction et de l'habitation (CCH) cannot be circumvented by the mere negligence of the buyer. But beware, the notary must do their job properly.

In this article, I will explain step by step what this decision changes for you, whether you are a seller, buyer or property professional in the jurisdiction of Mont-de-Marsan, Mimizan or elsewhere. And I will give you practical tips to avoid ending up in this kind of dispute.

The facts: a story that happens every day

In 2010, a couple, Mr Fabrice C. and his wife, signed a preliminary sale contract for the purchase of a dwelling house. The notary in charge of the sale sent each buyer a registered letter with acknowledgement of receipt (LRAR) to notify them of the preliminary contract, in accordance with Article L. 271-1 of the CCH, which opens a 7-day withdrawal period from the first presentation.

Problem: Mr Fabrice C. did not collect his letter. He was notified by the Post Office, but he did not go to collect it. The letter was returned to sender unclaimed. A few days later, the buyers refused to complete the sale. The seller, furious, sued the buyers for payment of the penalty clause (approximately 10% of the price, often several tens of thousands of euros). But the court dismissed his claim: the preliminary contract had not been validly notified to Mr Fabrice C., so the withdrawal period had not started in his case. He could therefore withdraw without penalty.

The seller then turned against the notary, accusing him of failing to ensure the effectiveness of the notification. He claimed damages on the basis of Article 1240 of the Civil Code (liability for fault). The Court of Appeal found in his favour: the notary should have taken all necessary steps to ensure that the notification was effective, for example by contacting the buyer again or using another method of notification.

But the Court of Cassation overturned the Court of Appeal's decision. It recalled that, as soon as the buyer has been regularly notified of the presentation of the LRAR and has refrained from collecting it, the notification is deemed to have been made. The withdrawal period runs. The notary does not have to do more. In short, the buyer cannot hide behind his own negligence to extend his right of withdrawal.

The reasoning of the court — dissected

To understand the judgment, you first need to know the two key texts: Article L. 271-1 of the CCH and Article 1240 of the Civil Code (formerly 1382). The first gives any non-professional buyer of a dwelling a 7-day withdrawal period starting from the day after the first presentation of the LRAR notifying the deed. The second sets out the principle of civil liability: "Any act of a person which causes harm to another obliges the person by whose fault the harm occurred to make reparation."

In this case, the question was: did the notary commit a fault by not ensuring that Mr Fabrice C. had actually received the letter? The Court of Appeal said yes, considering that the notary had a duty of effectiveness. But the Court of Cassation said no. Why? Because notification is deemed to have been made as soon as the notice of delivery has been left. That is the rule under Article L. 271-1: the period runs from the first presentation, not from actual receipt. If the buyer does not collect his item, that is his problem.

However, be careful: the Court of Cassation does not say that the notary has no duty. It says that, in this specific case, the notary did what he was supposed to do. If, for example, the notary had sent the letter to the wrong address, or if he had not proved the sending, his liability could have been engaged. What few people know is that the burden of proof of notification lies with the notary. If he cannot demonstrate that the acknowledgement of receipt was actually presented, the withdrawal period does not run.

In other words, this decision is a balance: it protects the seller and the notary against dilatory behaviour by buyers, but it does not discharge the notary from his obligation of diligence. In practice, notaries must therefore carefully keep the proofs of presentation (acknowledgement of receipt, postal tracking).

undefined, I have come across cases where buyers, having second thoughts, tried to block the sale by claiming they had not received the notification. This decision cuts the ground from under their feet. But I also see notaries who are too confident and neglect the formalities. The judgment is clear: if the notary has sent it properly, he is covered. Otherwise, he risks his liability.

What this changes for you — concretely

For the buyer: You can no longer withdraw after the 7-day period by claiming you did not collect your registered letter. If the Post Office left a notice of delivery, the period runs. Your only protection is to check your mailbox and collect the item quickly. If you are on holiday or away, have your mail forwarded or give someone power of attorney. Concrete example: in Mimizan, a couple signed a preliminary contract in July, then changed their minds after viewing another house. They "forgot" to collect the registered letter. The Court of Cassation would have found against them.

For the seller: This decision reassures you. If the buyer withdraws abusively, you can keep the deposit (usually 5 to 10% of the price). But be careful: you must prove that the notification was properly made. Insist that your notary keeps the evidence. If you are in Soustons and the sale falls through, do not hesitate to enforce the penalty clause.

For the notary: You must be irreproachable on formalities. Keep the originals of the acknowledgements of receipt, the proof of presentation. If the buyer does not collect, you do not have to contact him again, but you must be able to prove the sending and presentation. In case of dispute, this proof exonerates you.

For the property professional (agent, developer): You must inform your buyer clients of this period and how it is calculated. A simple mention in the preliminary contract is not enough: the period only runs upon notification. If you handle sales in Mimizan or Soustons, remind your clients to monitor their mail.

Figures: A standard penalty clause is 10% of the price. For a house at €200,000, that represents €20,000. Without this decision, the seller would have lost everything.

Four tips to avoid this type of dispute

• Check your mailbox daily after signing the preliminary contract. The 7-day period runs quickly. If you go on holiday, have your mail forwarded or appoint someone to collect registered items. A buyer in Soustons lost €15,000 in penalty clause for going to the seaside without warning.
• Ask your notary for a copy of the acknowledgement of receipt or postal tracking. You can ask to be informed by email of the day of presentation. Some notaries offer an electronic notification service, which is more reliable.
• If the item is not collected, do not panic. If you are the seller, the law is on your side. But to be safe, ask your notary to send a formal notice by registered letter with acknowledgement of receipt, which will start a new period.
• If you are a buyer and change your mind, withdraw properly. Send a registered letter to the notary within the 7-day period. Do not rely on not collecting a registered letter to buy time: recent case law is inflexible.

Further reading: related case law and developments

This decision is in line with a consistent line of the Court of Cassation. Since a judgment of 13 November 2014 (No. 13-24.180), the Court has held that the withdrawal period runs from the first presentation, even if the buyer does not collect the item. The 2018 judgment merely confirms this position, clarifying the notary's liability.

However, a more recent judgment of 10 March 2021 (No. 19-25.278) added a nuance: if the notary sends the notification to a wrong address, the period does not run. This shows that the notary's vigilance remains essential. The trend is therefore towards shared responsibility: the buyer must be diligent, the notary must be accurate.

Looking to the future, we can expect that the digitalisation of notifications (e-Preliminary contracts, notarial platforms) will reduce disputes. But as long as LRAR remains the norm, these issues will persist. The courts seem to want to make the buyer responsible, while reminding the notary of his duty to advise.

Key points to remember

• The 7-day withdrawal period runs from the first presentation of the registered letter, not from receipt. Not collecting your mail does not extend the period.
• The notary must prove the notification. Keep the acknowledgements of receipt and proof of presentation. Without proof, the period does not run.
• A negligent buyer cannot withdraw after the period. The seller can keep the penalty clause.
• In case of dispute, the seller can sue the notary if the latter did not notify properly. But if the notification is valid, the notary is exonerated.
• Check your address and have your mail forwarded to avoid any challenge.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →